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Patent Filing and Patent Prosecution in India - Patent Application Types - Provisional & Complete Patent - PCT National Phase & International Phase Application - Patent Publication, Examination and Office Action Response

Rahul Dev
Rahul Dev
Rahul DevPatent Attorney in India | Tech Corporate Lawyer | Incorporated & Expanded Businesses Across Asia Serving Clients Globally

Types of Patents Various types of patent applications can be filed in India, including: Provisional Patent Application Complete Patent Application PCT International Phase Patent Application PCT National Phase Patent Application Paris Convention Patent Application Indian Patent Office follows a well-defined patent prosecution procedure, which includes various deadlines and other documentary requirements. In general, such deadlines mostly begin from the priority date of the patent application. Under normal circumstances, a patent application is published after 18 months from the date of filing or date of priority, whichever is earlier. However, patent applicants can expedite the patent prosecution by filing request for early publication via Form 9, whereby patent applications are published within 6 weeks of filing said request. This can greatly reduce the time taken by patent office to complete post-filing steps, and patent applicants can easily save upto 18 months from the entire patent prosecution time period. Patent Examination After filing a patent in India, a separate request for patent examination via Form 18 is required to be filed with Indian Patent Office. This request can be filed either at the time of filing patent application or anytime within 48 months from the earliest priority date. Some patent applicants intend to delay patent prosecution process for business reasons as the claimed invention might need some time for being completely embodied as a commercially viable product. Hence, such applicants can take advantage of the 48 months timeline and file the patent examination request after few months / years of the patent filing date. Alternatively, some patent applicants prefer to expedite the patent examination process by filing such examination request along with the patent application. This combined with a request for early publication can reduce the patent prosecution time period by approx. 18 months. First Examination Report (FER) or Office Action The patent examiner examines the contents of patent application to determine novelty, inventive step (non-obviousness) and industrial application. Thereafter, the patent office issues a set of objections generally known as the first examination report (FER) or the office action. Office Action Response The patent applicant is required to submit a response to office action (FER) within 12 months of issuance of said office action. Grant of Patent After receiving a satisfactory response from the applicant, the examiner grants the patent. In some cases, a hearing may be required. In addition, the examiner can issue further office action after receiving response to FER, which can be responded to by the applicant in a timely manner to proceeds towards grant stage.

Patent Filing and Patent Prosecution in India - Patent Application Types - Provisional & Complete Patent - PCT National Phase & International Phase Application - Patent Publication, Examination and Office Action Response

1 of 16
Patent Filing and
Prosecution in India
Insights by Patent Attorney
Filing a patent in India provides
strategic competitive advantage to
companies and business owners
Indian Patent Office (IPO):
e-Filing of Patent Application is
Preferred
Provisional Complete
PCT
International
Phase
PCT
National
Phase
Convention
Application
Patent Application Types
Provisional Patent Application
Define Scope of Invention
Broad Disclosure
Broad Set of Claims (Optional)
Patent Drawings / Sketches
Provides Patent Pending Status
Complete Patent Application
Direct filing or within 12 months of provisional
Full-fledged claims required
Formal Patent Drawings mandatory
Detailed description of best mode required

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Patent Filing and Patent Prosecution in India - Patent Application Types - Provisional & Complete Patent - PCT National Phase & International Phase Application - Patent Publication, Examination and Office Action Response

Editor's Notes

  1. Types of Patents Various types of patent applications can be filed in India, including: Provisional Patent Application Complete Patent Application PCT International Phase Patent Application PCT National Phase Patent Application Paris Convention Patent Application
  2. Generally, filing a provisional patent application forms the first step of patent process in India. A provisional patent in India can be filed by an inventor (individual or natural person), group of inventors, or a legal entity (company or a research organization). The applicant may or may not be an Indian national. There are multiple advantages of filing a provisional patent application
  3. A complete patent application can be filed directly or within 12 months of filing a provisional patent. Drafting a complete patent application that is to be filed in India requires detailed disclosure of the invention, including abstract, claims, formal figures (patent drawings), brief description and detailed description of best mode of carrying out the invention.
  4. PCT International Phase Applications are governed by Patent Cooperation Treaty, or PCT as it is commonly known, is signed by 148 jurisdictions (countries) worldwide. A PCT International Phase Application can be filed with the Indian Patent Office or directly with the International Bureau (IB) of WIPO.
  5. Applicants can file PCT International Application directly or within 12 months from the earliest priority date. The main form required for PCT international application is RO/101. While drafting the PCT documents, applicants are required to select a competent international searching authority from: Austrian Patent Office (AT) Australian Patent Office (AU) State Intellectual Property Office of the People’s Republic of China (CN) European Patent Office (EP) Swedish Patent and Registration Office (SE) United States Patent and Trademark Office (US) Based on PCT documents and forms filed by the applicants, the selected search authority conducts a PCT International Search as per standards prescribed by WIPO. The search generally includes analysis of patent publications, granted patents and non-patent technical literature for determining patentability of the claimed invention. The patentability of patent claims is analysed by reviewing Novelty (N), Inventive Step (IS) and Industrial Applicability (IA). Along with the patentability analysis, the competent search authority issues a Written Opinion (WO), which forms the basis of IPRP (International Preliminary Report on Patentability).
  6. Entering PCT National Phase in India is similar to filing a local patent application in India. The statutory timeline to file a PCT National Phase Application in India is within 31 months from the priority date. In accordance with Indian Patents Act and corresponding Patent Rules, the International Filing Date is deemed to be considered as filing date in India for PCT National Phase Patent Applications. Indian Patent Office (IPO) considers an application filed under PCT National Phase as a Convention Application filed under Paris Convention.
  7. Filing Convention Patent Application in India: Foreign patent applicants can claim the benefit of Paris Convention and file patents in India by claiming priority from already filed international patent applications.
  8. English translation of the patent application (as filed with WIPO) is required if international patent application is not filed in English language. Indian patent laws mandate that all formalities for PCT National Phase Applications filed in India are similar to an ordinary patent that is filed in India. Once a PCT National Phase Application is filed in India with the Indian Patent Office, the patent prosecution process doesn’t begin before the expiry of 31 months from the priority date. However, the patent applicants can fast track or expedite the patent process by filing a request for express examination, as explained here.
  9. The main stages of patent application process in India before the Indian Patent Office: Patent Filing before Indian Patent Office Patent Publication Patent Examination Patent Opposition (if any) Replying to Patent Opposition Raised by Patent Examiner Indian Patent Grant Publication of Indian Patent Grant in the Indian Patent Office Journal
  10. Once a patent application has been filed with Indian Patent Office, the next step is patent publication. Under normal circumstances, a patent application is published after 18 months from the date of filing or date of priority, whichever is earlier. However, patent applicants can expedite the patent prosecution by filing request for early publication via Form 9, whereby patent applications are published within 6 weeks of filing said request. This can greatly reduce the time taken by patent office to complete post-filing steps, and patent applicants can easily save upto 18 months from the entire patent prosecution time period.
  11. Once a patent application has been filed with Indian Patent Office, the next step is patent publication. Under normal circumstances, a patent application is published after 18 months from the date of filing or date of priority, whichever is earlier. However, patent applicants can expedite the patent prosecution by filing request for early publication via Form 9, whereby patent applications are published within 6 weeks of filing said request. This can greatly reduce the time taken by patent office to complete post-filing steps, and patent applicants can easily save upto 18 months from the entire patent prosecution time period.
  12. Once a patent application has been filed with Indian Patent Office, the next step is patent publication. Under normal circumstances, a patent application is published after 18 months from the date of filing or date of priority, whichever is earlier. However, patent applicants can expedite the patent prosecution by filing request for early publication via Form 9, whereby patent applications are published within 6 weeks of filing said request. This can greatly reduce the time taken by patent office to complete post-filing steps, and patent applicants can easily save upto 18 months from the entire patent prosecution time period.